United States v. Lopez-Cristobal

Case: 22-50985 Document: 00516703504 Page: 1 Date Filed: 04/06/2023

United States Court of Appeals for the Fifth Circuit _____________ United States Court of Appeals Fifth Circuit No. 22-50985 consolidated with FILED No. 22-50989 April 6, 2023 _____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Enrique Lopez-Cristobal, Defendant—Appellant. ______________________________ Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:22-CR-518-1, 4:22-CR-527-1 ______________________________ Before Wiener, Elrod, and Engelhardt, Circuit Judges.

Per Curiam: * Defendant-Appellant Enrique Lopez-Cristobal appeals his sentence and challenges as unconstitutional, for his first time on appeal, the district court’s application of the enhanced penalty range in § 1326(b). He contends that such an application permits a sentence above the statutory maximum of § 1326(a) based on a prior conviction that was not alleged in the indictment Case: 22-50985 Document: 00516703504 Page: 2 Date Filed: 04/06/2023

No. 22-50985 c/w No. 22-50989 or found by a jury beyond a reasonable doubt. He raises that issue to preserve it for further review and has filed an unopposed motion for summary disposition, conceding that the issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). We separately note that, because Defendant- Appellant’s brief does not address either his revocation or the revocation sentence, he abandons any challenge to that judgment. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). 1 Defendant-Appellant’s motion for summary disposition is granted.

The district court’s judgment is affirmed.